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PRIVATE MEMBERS LEGISLATIVE PROPOSAL AND SPECIAL PETITIONS PORTFOLIO COMMITTEE
21 May 2003
LEON'S PARDON INVESTIGATION PROCEDURE BILL
Chairperson: Mr PAC Hendrikse (ANC)
Documents handed out:
Mr Tony Leon's Pardon Investigation Procedure Bill
Minister Maduna's Comment on Pardon Investigation Procedure Bill (Appendix 1)
Mr Leon's briefing on Pardon Investigation Procedure Bill and Response to Minister's Comment (Appendix 2)
Mr Leon made a presentation in which he outlined his proposed Pardon Investigation Procedure Bill. Mr Leon also responded to the critique of the Bill by the Ministry of Justice and Constitutional Development. A short discussion period followed in which members put questions to Mr Leon about issues such as presidential powers.
Briefing on Pardon Investigation Procedure Bill and Response to Minister's Comment by Mr Leon
Mr Leon (DA) briefed the Committee on the background, motivation and the model for a Pardon Investigation Procedure. He then responded to the objections to the Bill as raised by Minister Maduna (see document for details)
A member asked what the laws in other countries are with regards to the pardoning of prisoners.
Mr Leon (DA) replied that in some countries the responsibility is left to the head of state and in others it follows a more regulated route of legal procedures. He referred to the Hatch Bill of the United States as being an example of where legal procedures guide this type of decision-making.
Mr Ainslie (ANC) asked if the State President's power is limited too much with regards to the carrying out of arbitrary power. He added that the Constitution inhibits the president's powers sufficiently and perhaps it is not necessary to further blunt the President's power with regards to this issue.
A member asked what the role of this committee will be in deciding on this legislation.
The Chair replied that the committee's role will be to decide whether or not to recommend this Bill to the House and whether the proposed legislation is legally correct.
Mr Ainslie asked what the rationale is behind this bill and suggested that perhaps it is for "compelling compassionate cases."
Mr Leon responded by placing the debate in the historical context of the division of powers between the head of state and the executive. What actually triggered this proposed legislation was the Martin Whitaker case where a person was murdered by a pardoned prisoner two weeks after his release. These pardoned prisoners were released by the President although they had been denied amnesty by the Truth & Reconciliation Commission (TRC).
A committee member asked how this issue reflects on the integrity of the President and added that the Bill was good in pointing out the legal loopholes.
Mr Leon replied that all of the President's actions are subject to scrutiny. When the 33 prisoners were released, no reason was given. Initially no announcement was made and when the issue came to light, the announcements were fragmented. He had struggled to get access to legislation information and that it seemed to be irregular. He concluded by stating that the manner in which the process was exercised was questionable.
Meeting was adjourned
TO: P Hendrikse (Chair: Standing Committee on Private Members' Legislative Proposals)
FROM: Dr P Maduna (Minister: Department of Justice & Constitutional Development)
Dear Mr Hendrikse
REFERRAL OF PARDON INVESTIGATION PROCEDURE BILL FOR COMMENT
With reference to the previous correspondence between yourself and my Ministry, I would like to inform you that I have studied the Pardon Investigation Procedure Bill and would like to offer some general comment in respect thereof.
Pardoning of offenders historically fell within the prerogative powers of the English monarch. In South Africa the power of the President to pardon offenders flows directly from section 84(2)Q) of the Constitution and it is therefore regarded as a presidential prerogative. It is clear that such presidential prerogative does not derive its authority from, and it is not dependent upon, legislative enactment
Unlike the Interim Constitution, the Constitution places no obligation on the President to either' consult before he exercises his power of pardoning offenders or to exercise that power together with the other members of the Cabinet. However, a practice has developed by means of which the President, in particular cases, approaches the Cabinet member responsible for the administration of justice for advice or recommendations. In such instances that Cabinet member acts merely as an extension of the office of the President. In many other cases the President exercises his prerogative without approaching any Cabinet member for advice or recommendations.
The Office of the President and my Department have developed guidelines which are followed when considering applications for pardon before advising the President or making recommendations to him or her in respect of such applications. I am of the opinion that it is unnecessary to incorporate those guidelines in legislation.
Should the proposed Bill be enacted, it will only apply in cases where the President approaches the Cabinet member responsible for the administration of justice for advice cr recommendations. That Cabinet member must, in terms of the Bill, follow a very cumbersome procedure before he or she could advise the President or make any recommendation to him or her. The effect thereof could be that the President may in future decide more often, or even in every case, to exercise his power to pardon offenders without approaching the Cabinet member concerned for advice or recommendations. This could result in financial implications for the Office of the President as the establishment of that Office will have to be expanded in order to deal with the increased number of applications for pardon which have not been referred for advice or recommendations.
As pointed out in the previous paragraph, it will be possible for the President to circumvent the provisions of the Bill, if enacted, thereby making the Bill meaningless. in this regard I would like to draw your attention to one of the presumptions of the interpretation of statutes, namely that the legislature does not intend to make any provision which is futile, nugatory, unnecessary or meaningless.
A question which come to mind is whether a decision by the President to grant or refuse an application or pardon will be invalid or subject to review by a court of law where the President, in making that decision, has acted on the advice or recommendations of the Cabinet member responsible for the administration of justice and that Cabinet member, in providing that advice or making that recommendation, has failed to comply with the provisions of th6 Bill.
Lastly, I want to thank you for giving me the opportunity to express my views on the Bill,
With kind regards
Dr PM Maduna
BRIEFING BY MR LEON ON PARDON INVESTIGATION PROCEDURE BILL ON 21 MAY 2003
The Pardon Investigation Procedure Bill ("The Bill") was introduced following: President Thabo Mbeki's controversial decision to grant a presidential pardon to 33 convicted prisoners who had been refused amnesty by Truth and Reconciliation Commission; and the subsequently murder of East London businessman Martin Whitaker by Dumisani Ncamazana - one of the 33 convicted prisoners - approximately two weeks after receiving a presidential pardon.
The Bill prescribes the process by which the Minister of Justice and Constitutional Development, when requested to do so by the President, investigates and makes recommendations on potential exercises of the powers of the President of the Republic in terms of section 84(2)k\) of the Constitution of the Republic of South Africa, 1996 (Act 198 of 1996) - i.e. the powers to grant pardons, reprieves or remissions of fines, penalties or forfeitures. These powers are collectively referred to as "executive clemency".
In conducting his investigations and reporting to the President, the Minister will in terms of the Bill be required to inform, and ascertain the opinions O( a range of relevant parties including investigators, prosecutors, prison official and probation officers. Central to the Bill is the insistence upon the rights of the victims of a crime or their families to be advised of any potential grant of executive clemency to the perpetrator, and to give their opinions to the Minister in this regard. Furthermore, this Bill would compel the Minister to advise not only the victims, but also the public timeously of any grant of executive clemency immediately after it has been granted.
By prescribing the process by which the Minister of Justice and Constitutional Development, when requested to do so by the President, investigates and makes recommendations on potential exercises of the powers of the President of the Republic in terms of section 84(2)Q) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) the Bill will: promote transparency and consistency; enable the Minister to make an informed recommendation to the President by ensuring the participation of a wide range of interested parties including investigators, prosecutors, prison official and probation officers investigators, prosecutors, prison official and probation officers who may have relevant insights and information; and in controversial cases, create the opportunity to build up political opposition to any grant of executive clemency as, for example, the victims of a crime or their families express their opposition to any pardon after consultation.
5.1 The Bill is based on the 'Pardon Attorney Reform and Integrity Act 2000' ("The Hatch Bill") introduced by Senator Orrin Hatch in the wake of the outrage following the 176 controversial pardons issued by President Bill Clinton. The Bill provides that, in cases where the President delegates to the Pardon Attorney (which is a division of the Department of Justice) the responsibility for investigating a potential grant of pardon, the Pardon Attorney must prepare a report demonstrating that he has: made all reasonable efforts to inform and take opinions of the victims; made all reasonable efforts to determine the opinions of law enforcement officials, investigators, prosecutors and other role players with regard to the propriety of a potential pardon, and specifically the danger posed by the person to society and the degree of remorse shown by him; made all reasonable efforts to determine the opinions of the law enforcement officials as to whether the person may have any information to assist in ongoing investigation; and made all reasonable efforts to determine the opinion of the intelligence agencies as to whether the pardon would have any effect on the threat of terrorism or any other criminal activity. The Pardon Attorney must also inform the victims timeously after the grant of pardon, if any.
5.2 An article in the New Republic summarised the nature of the legislation thus: "Hatch's Pardon Attorney Reform and Integrity Act would require that the administration receive opinions on pardon applications from the prosecutors, judges, and probation officers who dealt with the petitioner. It would further mandate that the administration not if" the pardon applicant's victims so they too could weigh in on the case. Essentially, the Hatch reforms would bog down applications for pardons in enough bureaucracy and paperwork to make it logistically impossible to issue them in an administration's final hours--when presidents historically have tried to hide the most controversial ones. Above all, the Hatch act would allow time to build political opposition to potential pardons. Angry prosecutors and victims would vent their frustrations to the press. Watchdog groups and congressmen would erupt in fury."
6. Possible Objections
6.2 Departmental Guidelines
6.1. it is unnecessary to incorporate those guidelines in legislation' (p.1)
The process by which the Minister of Justice and Constitutional Development, when requested to do so by the President, investigates and makes recommendations on potential exercises of the powers of the President of the Republic in terms of section 84(2)Q) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) should be incorporated in legislation because it has the advantage of placing a legal obligation on the Minister to follow a prescribed process in respect of investigating potential exercises of executive clemency for the purposes of making a recommendation to the President.
6.2 'Cumbersome' Procedure
"Â· ..follow a very cumbersome procedure before he or she could advise the President or make any recommendation to him or her. The President may in future decide more often, or even in every case, to exercise his power to pardon offenders without approaching the Cabinet member concerned for advice or recommendations. This could result in financial implications for the Office of the President...' (p.2)
If the President routinely chose to circumvent the legislation because the process it envisages is too "cumbersome" this would call into question the weight attached by the President to the exercise of his S84 (2) powers.
The financial implication of the Bill would, in our view, be negligible regardless of whether the process administered by the Office of the President or the Department of Justice and Constitutional Development.
"it will be possible for the President to circumvent the provisions of the Bill, if enacted, thereby making meaningless.' (p.2)
The Bill would apply only in cases where the President asks the Minister of Justice and Constitutional Development for an investigation and a recommendation. But if the President decided to circumvent the legislation, this would raise serious questions about his motivation and the degree to which he had applied his mind to the pardon in question. The Bill would not be "meaningless" because, in such cases, there would indeed be recourse against the President. This recourse would be of a primarily political (as opposed to legal) nature.
6.4 Judicial Review
"..whether a decision by the President to grant or refuse an application for pardon will be invalid or subject to review court of law...' (p.2)
Although we cannot presume to speak for the courts, we would submit that the President's powers would not be subject to any higher standard of review than contemplated in President of the RSA V Hugo 1997 (4) SA 1 (CC) ie. review on the basis of irrationality, caprice, disabling bias or violation of the Bill of Rights. To attempt to impose the normal S33 standard of review of administrative action would effectively amount to a back-door amendment of the Constitution, which provides for a lower standard of review for S84 (2) powers. However, the Minister of Justice and Constitutional Development's actions would still be subject to normal administrative review in accordance with S33 of the Constitution. Should the President exercise his powers based on a recommendation by the Minister which does not comply with the legislation, it may be the case that the primary recourse will be of a political, rather than legal, nature.
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